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ELCDismissedNot stated in judgment· [2018] KEELC 3347 (KLR)

Lucy Wairimu Kianda & 2 others v Esther Wangari Joseph & 4 others [2018] KEELC 3347 (KLR)

Environment and Land Court
10 May 2018
JKJ G Kemei
2,731 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Land Court ruled that family members can challenge fraudulent land transfers without first obtaining letters of administration, where the land is already registered in other people's names.

What this practically means

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Executive summary

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The Applicants, children of the late Joseph Njuki Michuki who died intestate on 20 June 2004, sued the Defendants seeking declarations that the transfer of Fort Hall/Loc.12/Sub-Loc.1/Gakira/T.15 and T.1501 out of the deceased's name, and the subsequent partitions into parcels T.551 to T.555, were null and void, together with cancellation of the titles and reversion of the properties to the name on the register as at 1962/1980. Contemporaneously they sought an injunction restraining dealings with the suit properties pending hearing. The Defendants filed a preliminary objection contending that the Applicants lacked locus standi having no letters of administration, that the suit offended the Law of Succession Act Cap 160, and that the Environment and Land Court lacked jurisdiction, the dispute properly belonging to the High Court as a succession matter. The court first restated the principles governing preliminary objections from Mukhisa Biscuit and Oraro v Mbaja: an objection must be a pure point of law not dependent on contested facts or evidence. Since the facts pleaded were disputed, the objection could not succeed on that basis. On jurisdiction, the court held that Article 162(2)(b) of the Constitution, section 13 of the ELC Act, section 105 of the Land Registration Act and section 150 of the Land Act confer jurisdiction over title disputes; the claim was essentially one of fraud and illegality in transfers of registered land, not administration of an estate. On locus, the court reasoned that the Applicants do not seek to administer the estate; the properties are no longer registered in the deceased's name, they sue the administrator and transferees questioning the validity of titles, so intermeddling does not arise. The preliminary objection was dismissed with costs to the Applicants.

Key legal issues

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01

Whether the preliminary objection raised a pure point of law

Holding

The objection failed as it called for investigation of disputed facts

Reasoning

Relying on Mukhisa Biscuit and Oraro v Mbaja, the court restated that a preliminary objection must be a point of law uncontaminated by factual controversy. The facts alleged in the plaint and defence were disputed, so the claim could not be summarily dismissed on a preliminary point; for such an objection to succeed the facts pleaded in the plaint must be deemed correct.

p. 3
02

Jurisdiction of the ELC Court

Holding

The court has jurisdiction over disputes on title to land notwithstanding a succession element

Reasoning

Article 162(2)(b) of the Constitution together with section 13 of the ELC Act, section 105 of the Land Registration Act and section 150 of the Land Act confer jurisdiction over title disputes. The plaint's cause of action was fraud and illegality in the transfers of registered land, a matter of title, not administration of an intestate estate, so the ELC Court is properly seized.

p. 4
03

Locus standi of the Applicants

Holding

Locus was not wanting because the Applicants do not seek to administer the estate

Reasoning

The suit properties are no longer registered in the deceased's name but in the names of living persons. The Applicants sue the administrator and transferees for fraudulent appropriation of land titles and seek to establish their beneficial interests, questioning the validity of titles. Intermeddling with the estate does not arise since the assets ceased to be estate property.

p. 4

Legal principles established

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  • A preliminary objection must be a pure point of law not blurred with contested factual details
  • A person suing over estate property without letters of administration intermeddles contrary to section 45 of the Law of Succession Act
  • Where suit property has been transferred out of a deceased's name and third parties are involved, beneficiaries challenging the validity of titles need not hold a grant

Court orders

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  1. 1.The Preliminary Objection is dismissed with costs to the Applicants

Authorities

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Legislation

  • Law of Succession Act (Cap 160)section 45
  • Environment and Land Court Act No. 19 of 2011section 13, section 2
  • Land Registration Act 2012section 61, section 105
  • Land Actsection 150
  • Constitution of Kenya, 2010Article 162(2)(b)

Cases cited (4)

  • Stephen Waithaka Gatumbi Vs Frumence Murui Nai
    1757 of 2001
  • Mukhisa Biscuit Manufacturing Co Limited Vs West End Distributors Limited
    1969 EA 696
  • Oraro vs. Mbaja
    (2005) I KLR 141
  • Nitia Properties Limited – v- Jagjit Singh Kalsi & Another
    C.A. No. 132 of 1937
Jurisdiction invoked
Article 162(2)(b) of the Constitution read with section 13 of the Environment and Land Court Act, section 105 of the Land Registration Act and section 150 of the Land Act

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Lucy Wairimu Kianda & 2 others v Esther Wangari Joseph & 4 others [2018] KEELC 3347 (KLR)", Case Analysis (2018). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/3347/eng@2018-05-10

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.